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  1. #1
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    Bonking ... not feelin' well Montana Rider's Alert

    Thought anyone who rides near Bozeman should know about this. I havn't any idea of how to solve this problem. It appears as though the Greater Yellowstone Coalition and the Montana Wilderness Association has filed a suit with the goal of curtailing motorcycling and snowmobiling in the WSA called the Hyalite-Porcupine Buffalo Horn. They also want to eliminate bicycling altogether. This area contains about 1/2 of the Bozeman area riding. The Gallatin Crest ride, the most asskicking ride in the area is there. It has been heavily used since mountain bikes were created. The local Forest Service wants to retain mountain biking there, but the enviros don't want to play nice. While they say they care for the environment they don't try to be good neighbors. Again, it looks like we are going to be victims of the strife between motorized and wilderness people. Plus we are victims of the 1977 WSA laws because mountain bikes didn't yet exist.

    Sorry about the poor quality format. I just copied and pasted from a pdf.

    Case 9 :07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 1 of 12
    Douglas L. Honnold
    Timothy J . Preso
    Jenny K. Carbine
    Earthjustice
    209 South Willson Avenue
    Bozeman, MT 59715
    (406) 586-9699
    Fax: (406) 586-9695
    [email protected]
    [email protected] .org
    [email protected] .org
    Attorneys for Plaintiffs
    UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MONTANA
    MISSOULA DIVISION
    MONTANA WILDERNESS ASSOCIATION)
    and GREATER YELLOWSTONE
    )
    COALITION
    )
    ) Case No. CV-07-39-M-DWM
    Plaintiffs,
    )
    )
    vs.
    )
    ) COMPLAINT FOR DECLARATORY
    KATHLEEN McALLISTER, Regional
    ) AND INJUNCTIVE RELIEF
    Forester for Region 1 ; REBECCA HEATH, )
    Supervisor of the Gallatin National Forest ; and )
    UNITED STATES FOREST SERVICE,
    )
    )
    Defendants.
    )
    )
    INTRODUCTION
    1 .
    This case challenges the U .S . Forest Service's decision to increase motorized use
    in a congressionally designated wilderness study area on the boundary of Yellowstone National
    Park. The Gallatin National Forest, which is located in the Greater Yellowstone Ecosystem
    adjacent to the north and west boundaries of Yellowstone National Park, contains approximately

    Case 9:07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 2 of 12
    1 .8 million acres of land boasting dramatic mountain landscapes, extensive wilderness and
    wilderness-quality lands, and some of the finest habitat for rare and imperiled wildlife in the
    United States . Increasingly, certain portions of the Gallatin Forest have also become a focus of
    motorized recreation activity by riders of all-terrain vehicles, motorcycles, and snowmobiles.
    2.
    This case challenges the Record of Decision ("ROD") for the Gallatin National
    Forest's Travel Management Plan ("Travel Plan") dated October 30, 2006, and the
    Environmental Impact Statement which underlies that ROD . In that action, the Forest Service
    approved expanded motorized and mechanized activities in the congressionally designated
    Hyalite-Porcupine-Buffalo Horn Wilderness Study Area ("WSA"), in violation of a statutory
    mandate to preserve the WSA's wilderness values.
    3.
    Plaintiffs allege that the Travel Plan and ROD are in violation of the Montana
    Wilderness Study Act, the National Environmental Policy Act ("NEPA"), and the Administrative
    Procedure Act ("APA").
    JURISDICTION, VENUE, AND ADMINISTRATIVE REMEDIES
    4.
    Plaintiffs bring this action pursuant to the Administrative Procedure Act ("APA"),
    5 U.S.C . § 551 et seq ., which waives the defendants' sovereign immunity . This Court has
    jurisdiction over plaintiffs' claims pursuant to 28 U .S.C . § 1331 (federal question), and may
    issue a declaratory judgment and further relief pursuant to 28 U .S.C . §§ 2201-02.
    5.
    Venue lies in this judicial district pursuant to 28 U .S.C. § 1391(e) because: (1)
    defendants McAllister and Heath reside in this District ; (2) plaintiffs Montana Wilderness
    Association and Greater Yellowstone Coalition reside in this District ; and (3) the land at issue
    lies within the Gallatin National Forest, headquartered in Bozeman, MT . Venue is proper in the
    Missoula Division because : (1) the appeal officer's decision, which constitutes the final agency

    Case 9 :07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 3 of 12
    action in this case, was made in Missoula, MT ; and (2) a substantial part of the events or
    omissions giving rise to plaintiffs' claims occurred in this Division.
    6.
    Plaintiffs have attempted to resolve their claims administratively by appealing
    portions of the Gallatin National Forest Travel Plan and ROD to the Forest Service pursuant to
    36 C.F.R. § 215 . The Forest Service denied plaintiffs' appeal on March 20, 2007 . Plaintiffs
    have exhausted all available administrative remedies.
    PARTIES
    7.
    Plaintiff Montana Wilderness Association ("MWA") works to protect the values
    of Montana roadless areas and the traditional, non-motorized outdoor recreation activities that
    depend on those roadless areas and other public lands . MWA has 6,000 members, about 750 of
    whom reside in the Madison-Gallatin Chapter region . Each of MWA's members and staff has a
    deep interest in the protection of roadless lands now and for the future . They hike, backpack, ride
    horseback, hunt, fish, watch wildlife, ski, and snowshoe throughout the Gallatin National Forest.
    8.
    Plaintiff Greater Yellowstone Coalition ("GYC"), is a non-profit 501(c)(3)
    conservation organization with over 12,000 members, based in Bozeman, Montana, with offices
    in Wyoming and Idaho. GYC has participated in all aspects of the Gallatin Travel Plan process,
    including commenting on various agency proposals, participating in collaborative workshops,
    and even conducting its own investigations to determine the impacts various travel designations
    have on the Forest's resources and habitat . GYC's members regularly use all parts of the
    Gallatin National Forest for a variety of activities, including hiking, hunting, wildlife viewing,
    spiritual renewal, biological and botanical research, photography, and many other forms of
    recreation .
    3
    Case 9:07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 4 of 12
    9.
    Defendant Kathleen McAllister is the Regional Forester for Region 1 of the U .S.
    Forest Service. Defendant McAllister was the appeal officer for plaintiffs' administrative
    appeals and signed the decision rejecting those appeals . Defendant McAllister is sued in her
    official capacity.
    10.
    Defendant Rebecca Heath is the Supervisor of the Gallatin National Forest who
    signed the Forest Service Record of Decision approving the challenged action . Defendant Heath
    is sued in her official capacity.
    11. Defendant United States Forest Service is a federal agency within the Department
    of Agriculture . The Forest Service is responsible for managing the Gallatin National Forest, and
    for approving the Travel Plan that is the subject of this litigation.
    12.
    Members of each of the plaintiff conservation groups use the Gallatin National
    Forest, including the areas that are subject to the challenged aspects of the Travel Plan, for
    recreational pursuits, including wildlife watching, cross-country skiing, snowshoeing, hiking,
    and aesthetic enjoyment. The motorized and mechanized transport activity sanctioned by the
    Travel Plan will deprive those members and individuals of the opportunity to enjoy quiet solitude
    and serenity in the Hyalite-Porcupine-Buffalo Horn WSA . The legal violations alleged in this
    complaint cause direct injury to the aesthetic, conservation, recreational, scientific, educational,
    and wildlife preservation interests of members of the plaintiff organizations.
    13.
    Plaintiffs' aesthetic, conservation, recreational, scientific, educational, and
    wildlife preservation interests have been, are being, and, unless the relief prayed for herein is
    granted, will continue to be adversely and irreparably injured by defendants' failure to comply
    with federal law . These are actual, concrete injuries, traceable to defendants' conduct, that
    would be redressed by the requested relief. Plaintiffs have no adequate remedy at law.
    4
    Case 9:07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 5 of 12
    THE NATIONAL ENVIRONMENTAL POLICY ACT
    14.
    The National Environmental Policy Act ("NEPA") "is our basic national charter
    for protection of the environment ." 40 C.F .R. § 1500 .1(a). NEPA's twin aims are to ensure that
    federal agencies consider significant aspects of the environmental impacts of their proposed
    actions, and to ensure that agencies inform the public that environmental concerns have been
    considered in agency decision-making.
    15.
    NEPA requires federal agencies to prepare an environmental impact statement
    ("EIS") in connection with all "major Federal actions significantly affecting the quality of the
    human environment ." 42 U.S.C. § 4332(2)(C) . The EIS must detail, inter alia, "the
    environmental impact of the proposed action" and "alternatives to the proposed action ." Id.
    § 4332(2)(C)(i), (iii) . NEPA further provides that agencies must "study, develop, and describe
    appropriate alternatives to recommended courses of action in any proposal which involves
    unresolved conflicts concerning alternative uses of available resources ." Id . § 4332(2)(E).
    16.
    NEPA's implementing regulations flesh out these statutory requirements . The
    regulations provide that agencies must discuss "the environmental impacts of the alternatives
    including the proposed action, any adverse environmental effects which cannot be avoided
    should the proposal be implemented, [and] the relationship between short-term uses of man's
    environment and the maintenance and enhancement of long-term productivity ." 40 C.F.R. §
    1502.16.
    17.
    The regulations further provide that "[a]gencies shall insure the professional
    integrity, including scientific integrity, of the discussions and analyses in environmental impact
    statements." Id . § 1502 .24.
    THE MONTANA WILDERNESS STUDY ACT OF 1977
    Case 9:07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 6 of 12
    18.
    The Montana Wilderness Study Act of 1977, Pub . L . No. 95450, 91 Stat . 1243
    (1977), designated nine Wilderness Study Areas ("WSAs") throughout the state, including the
    Hyalite-Porcupine-Buffalo Horn WSA in the Gallatin National Forest . Congress directed the
    Forest Service to "maintain [the WSA's] presently existing wilderness character and potential for
    inclusion in the National Wilderness Preservation System ." Sec. 3(a), 91 Stat . at 1244. The
    Final Environmental Impact Statement for the Travel Plan ("FEIS") identified four aspects of
    wilderness character : natural integrity ; apparent naturalness ; opportunities for primitive
    recreation experiences ; and opportunities for solitude . FEIS at 3-571.
    19.
    The Hyalite-Porcupine-Buffalo Horn WSA is a 155,000-acre swath of
    undeveloped National Forest lands stretching from the northwest border of Yellowstone National
    Park north to the southern terminus of the Gallatin River valley where Bozeman, Montana, is
    located . The WSA encompasses the roadless core of the Gallatin Range and some of the best
    grizzly bear habitat in the Yellowstone ecosystem . It also provides one of the premier
    opportunities for primitive recreation in the Gallatin.
    20.
    Over recent years, technological improvements have led to a proliferation of
    vehicles designed for and capable of off-road travel . Snow machines are now able to travel over
    steep slopes and rougher terrain. High-elevation areas within the WSA previously inaccessible
    to snow machines now receive frequent use . Motorcycle use has also increased in the WSA
    since 1977 . Mountain bikes, which did not exist in 1977, now abound in the WSA . Both
    summer and winter motorized and mechanized activities have therefore increased in both
    intensity and spatial distribution in the WSA over the levels existing in 1977, at the time
    Congress enacted the Montana Wilderness Study Act . These new activities scar landscapes with
    6
    Case 9 :07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 7 of 12
    motor vehicle trails, disturb and displace wildlife, and introduce engine noise and pollution into
    otherwise pristine backcountry areas.
    THE CHALLENGED DECISION
    21
    The Forest Service approved the Travel Plan and ROD for the FEIS on October
    30, 2006 . The Travel Plan represents the first time in the history of the Gallatin National Forest
    that the Forest Service has attempted to comprehensively analyze and identify travel standards
    for the area . In the meantime, motorized and non-motorized activities on both designated and
    non-designated trails have escalated to an untenable level . The Travel Plan is intended to
    address increasing trail uses in the Gallatin National Forest by designating specific routes and
    areas of the forest where various types of motorized and non-motorized uses are authorized . The
    plan Incorporates various closures to motorized uses, but it also allows increased motorized uses
    in a particularly ecologically important area in the Forest: the Hyalite-Porcupine-Buffalo Horn
    WSA.
    22.
    Within the Hyalite-Porcupine-Buffalo Horn WSA, the Travel Plan authorizes
    increased summer-time motorized and mechanized uses . The Travel Plan allows motorcycle use
    of all trails that were open to such use in 1977, when the Wilderness Study Act was enacted,
    without any limit on the numbers of such users or even any consideration of the change in
    number of motorcycles in the area since that time . Although the FEIS does not assess the level
    of actual motorcycle use in 1977, the evidence before the agency indicated that motorcycle use
    on the WSA's trails has substantially increased in number and frequency since the 1977 Act.
    This increased frequency of motorcycle activity, even if confined to the same trails as were used
    in 1977, represents a degradation of the area's wilderness character that has not been studied by
    the Forest Service .
    7
    Case 9 :07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 8 of 12
    23.
    The Travel Plan also authorizes mountain bike use on these same WSA trails.
    Mountain biking is a mechanized activity that is inconsistent with wilderness character, and that
    did not occur in the WSA in 1977 . The Forest Service did not address the aggregated mountain
    bike-motorcycle impacts on wilderness character, despite evidence of intensified motorcycle use
    and greatly increased mountain bike activity since 1977.
    24.
    Also within the Hyalite-Porcupine-Buffalo Horn WSA, the Travel Plan designates
    routes and play areas for snowmobiles that were never used for that activity in 1977 . For
    example, the Travel Plan allows snowmobile use in high-elevation areas along the Gallatin Crest
    and into the east side of the Gallatin Range . Further, the Travel Plan does not limit the intensity
    of snowmobile use to 1977 levels . By allowing such uses to proliferate across these landscapes,
    the Forest Service has degraded the WSA's 1977 wilderness character.
    FIRST CAUSE OF ACTION
    (Violation of Montana Wilderness Study Act of 1977)
    25. Plaintiffs hereby reallege and incorporate Paragraphs 1 through 24, supra.
    26.
    The Montana Wilderness Study Act of 1977, Pub . L . No . 95-150, 91 Stat . 1243,
    established the Hyalite-Porcupine-Buffalo Horn WSA and directed that "the wilderness study
    areas designated by this Act shall, until Congress determines otherwise, be administered by the
    Secretary of Agriculture so as to maintain their presently existing wilderness character and
    potential for inelusion in the National Wilderness Preservation System ." §3(a), 91 Stat . at 1244.
    The Forest Service's decision to allow motorized and mechanized activities to increase beyond
    the 1977 status quo violates the statutory mandate to "maintain [the] presently existing
    wilderness character" of the WSA as of 1977, when the Act was passed.
    8
    Case 9:07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 9 of 12
    27. The Forest Service's designation of motorcycle routes in the WSA violates the
    Montana Wilderness Study Act because it does not consider the actual level, or intensity, of
    motorcycle use on trails that were open to such use in 1977, as compared to the intensity of such
    use that can be expected today under the agency's travel plan decision . Absent consideration of
    actual motorcycle use levels in the Hyalite-Porcupine-Buffalo Horn WSA in 1977, the Forest
    Service has no basis to conclude that the current authorization will maintain the area's 1977
    wilderness character.
    28. The Forest Service's decision to allow increased summertime motorized and
    mechanized transport in the Hyalite-Porcupine-Buffalo Horn WSA in the form of aggregated
    mountain bike and motorcycle use violates the Montana Wilderness Study Act because it does
    not "maintain [the] presently existing wilderness character" of the WSA as of 1977, when the
    Act was passed .
    29. The Forest Service's decision to allow snowmobiles in areas within the Hyalite-
    Porcupine-Buffalo Horn WSA that were inaccessible to snowmobiles in 1977, and to allow the
    intensity of such use to increase without limitation, violates the Montana Wilderness Study Act
    because it does not "maintain [the] presently existing wilderness character" of the WSA as of
    1977.
    30. The agency decision is thus arbitrary, capricious, and not in accordance with the
    law, and must be set aside . See 5 U .S .C. § 706(2)(A).
    SECOND CAUSE OF ACTION
    (Violation of NEPA)
    31. Plaintiffs hereby reallege and incorporate Paragraphs 1 through 30, supra .
    Case 9:07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 10 of 12
    32.
    NEPA requires that in preparing an Environmental Impact Statement, agencies
    must "insure the professional integrity, including scientific integrity, of the discussions and
    analyses" in the document . 40 C .F .R. § 1502 .24. NEPA further requires that an Environmental
    Impact Statement "shall state how alternatives considered in it and decisions based on it will or
    will not achieve the requirements of [NEPA] and other environmental laws and policies ." Id . §
    1502 .2(d) . The FEIS violates these requirements . The Forest Service is required under the
    Montana Wilderness Study Act to maintain the wilderness character of the Hyalite-Porcupine-
    Buffalo Horn WSA that existed in 1977 . However, the Forest Service. never undertook an
    assessment of the WSA's 1977 wilderness character, including opportunities for solitude and
    primitive recreation, that would enable it to determine whether the Travel Plan would degrade
    wilderness character . Particularly with respect to motorcycle use in the WSA, the Forest Service
    failed to establish the "baseline," i .e. the level and locations of motorcycle use in the WSA in
    1977. In failing to establish an accurate baseline against which to compare the effects of the
    proposed activity and with which to assess compliance with the Montana Wilderness Study Act,
    the agency decision is arbitrary, capricious, and not in accordance with the law, and must be set
    aside. See 5 U.S.C. § 706(2)(A).
    33.
    NEPA and its implementing regulations require that the Forest Service disclose .
    and analyze the potential environmental impacts of the proposed action . 42 U .S.C . § 4332(2)(C);
    40 C.F.R. § 1502 .16. The FEIS fails to disclose and analyze the impacts of the Gallatin National
    Forest's Travel Management Plan to wilderness character of the Hyalite-Porcupine-Buffalo Horn
    WSA. Specifically, the FEIS fails to disclose and analyze adverse impacts on the WSA's
    wilderness character due to increased levels and spatial extent of: (1) summertime motorcycle
    and mountain bike activity ; and (2) wintertime snowmobile activity . The agency decision is thus
    10
    Case 9 :07-cv-00039-DWM Document I Filed 03/28/2007 Page 11 of 12
    arbitrary, capricious, and not in accordance with the law, and must be set aside . 5 U.S .C. §
    706(2)(A).
    REQUEST FOR RELIEF
    THEREFORE, plaintiffs respectfully request that this Court:
    1.
    Declare that the Record of Decision violates the Montana Wilderness Study Act
    of 1977 by failing to maintain the "wilderness character" of the Hyalite-Porcupine-Buffalo Horn
    Wilderness Study Area as it existed at the time of the Act;
    2.
    Declare that the FEIS violates NEPA by failing to establish the baseline against
    which to gauge motorcycle impacts in the Hyalite-Porcupine-Buffalo Horn Wilderness Study
    Area;
    3.
    Declare that the FEIS violates NEPA by failing to disclose impacts of the Gallatin
    National Forest's Travel Management Plan on wilderness character of the Hyalite-Porcupine-
    Buffalo Horn Wilderness Study Area;
    4.
    Enjoin the Forest Service from allowing motorized and mechanized use in the
    Hyalite-Porcupine-Buffalo Horn Wilderness Study Area that would violate the Montana
    Wilderness Study Act;
    5.
    Award plaintiffs their reasonable fees, costs, and expenses, including attorneys
    fees, associated with this litigation; and
    11
    Case 9:07-cv-00039-DWM Document 1 Filed 03/28/2007 Page 12 of 12
    6
    Grant plaintiffs such further and additional relief as the Court may deem just and
    proper
    . Respectfully submitted this 28th day of March, 2007.
    /s/ Timothy J. Preso
    Douglas L. Honnold
    Timothy J . Preso
    Jenny K. Harbine
    Earthjustice
    209 South Willson Avenue
    Bozeman, MT 59715
    (406) 586-9699
    Fax : (406) 586-9695
    Attorneys for Plaintiffs
    12

  2. #2
    Sheepherder/Cat Herder Moderator
    Reputation: Visicypher's Avatar
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    The plaintiff has provided you with the argument against the prohibition of bicycles in the described area. Use it when you comment on the next FEIS.

    Remember what I told you about NEPA...if you have pictures of people riding in the described area in 1977, or prior, now is the time to dig them out.....

    It would be interesting to see if the WSA is in full compliance with NEPA? You might want to check that out...
    ...building wherever they'll let me...

  3. #3
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    Bummer

    Along with historic use this seems to be the crux of the issue.

    "Mountain bikes, which did not exist in 1977, now abound in the WSA . Both
    summer and winter motorized and mechanized activities have therefore increased in both
    intensity and spatial distribution in the WSA over the levels existing in 1977, at the time
    Congress enacted the Montana Wilderness Study Act . These new activities scar landscapes with ....."
    6

    I think this is the statement you need to address. There is alot of evidence and studies which show mountian biking has less impact erosion than some of the more "traditional" activities.

    As Visi pointed out, you should also look at the historic mountian bike use. I have seen pictures of early day troops in Yellowstone patroling the park for poaching ect. These type of pictures might help you establish that biking has been a long standing tradition in the area and conducive with National Parks and Wilderness Areas.

    I know it sounds odd but you might try and reach out to the environmental groups and find some common ground. Our local environmental group has a large membership who push Wilderness but also ride mountian bikes. The environmental community is at times nervous about working with mountian bikers because of there association with the Blue Ribbon Coalition and other fronts used by the extractive industry. Last year IMBA had appearances of holding hands with the Blue Ribon Coalition. This may have caused more harm than good. You may not have much sucess at first but keep trying to communicate with the environmental group as a mountian biker and not as a mechanical/motorized group.

    Good luck and let us know if we can help!

  4. #4
    mtbr member
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    Black history

    Here is some interesting history that might help. The link has some history of the 25th Infantry that rode across Montana on bikes a long time ago. Can’t believe what studs those guys were - Montana on a single speeds with gear before roads!

    http://www.nrhc.org/history/25thInfantry.html

    If I am not mistaken, this occurred before 1977.

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